Bombay High Court
Sukhchand Shambhuji Bhalavi (In ... vs State Of Maharashtra, Through ... on 17 June, 2016
Bench: B.R. Gavai
apeal402.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.402 OF 2014.
APPELLANT: Sukhchand Shambhuji Bhalavi,
aged about 42 years, Occu: Labour,
R/o Naka No.6, Ambedkar Nagar,
Kanhan, Nagpur.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station Officer,
Police Station Kanhan, Distt.
Nagpur.
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Mr.S.M.Puranik, Advocate (appointed) for the appellant.
Mr.M.J.Khan, Additional Public Prosecutor for the respondent.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 17th JUNE, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. Being aggrieved by judgment and order of conviction
passed by the learned Additional Sessions Judge-6, Nagpur in
Session Trial No.220 of 2009, by which the learned Judge of the
Court below convicted the appellant for the offence punishable
under Section 302 of the Indian Penal Code and directed him to
suffer imprisonment for life and to pay a fine of Rs.500/- and in
default of payment of fine to suffer simple imprisonment for one
month, the appellant is before this Court.
2.
The facts, in nutshell, which give rise to the present
appeal are as under: -
Deceased Kalpana was married with the appellant. Her
marriage with the appellant was her second marriage, as well, the
appellant's marriage with Kalpana was also second marriage. His
first wife expired due to burn injuries.
Kalpana was having one daughter from her first
marriage whereas, from the appellant she was having one son.
The appellant used to work in Saw Mill. Marriage between
Kalpana and appellant took place prior to two years of the
incident. The incident in question is dated 27th of December, 2008
in a night in between 12.00 to 1.00 a.m. Kalpana suffered severe
burn injuries in the incident.
3. Suman Gedam (PW 6) is the mother of Kalpana. She
was informed that her daughter is burnt. Therefore, she
immediately rushed to the house of Kalpana, that time she noticed
that Kalpana was in a burnt condition. She therefore made
enquiries as to how the incident has occurred. That time Kalpana
disclosed to her mother Suman (PW 6) that her husband, the
appellant, poured kerosene from behind and set her ablaze and
thereafter he ran away. When Suman was in the house of
Kalpana, that time appellant was not available in the house. At
6.00 a.m. Kalpana was taken to the hospital.
4. On 28th of December, 2008, Deorao Bhokare (PW 7),
Head Constable, was a Day Officer. Police Inspector informed
him that a lady with burnt injuries is admitted in Mayo Hospital
and her statement is to be recorded. Accordingly, Deorao gave a
request letter (Exh.16) to Shri Tryambak Kamble (PW 2), A
Special Judicial Magistrate, and requested him to record statement
of Kalpana.
Thereafter, Deorao went to the Mayo Hospital. He
contacted there attending doctor and gave him requisition
(Exh.35) as to whether the patient is in a condition to give her
statement. Medical Officer gave his opinion on the said letter
itself and thereafter Deorao Bhokare (PW 7) went to the Ward
where Kalpana was admitted. She was on Bed No.19. He
recorded the statement of Kalpana who narrated the incident to
him that the appellant came in a drunken condition in the night.
He was served with the food by Kalpana. Thereafter, he went on
cot. After some time, the appellant started giving abuses to her
and again demanded food. That time, when Kalpana was taking
food for him, the appellant came from behind and poured
kerosene and set her ablaze. The statement recorded by Deorao of
Kalpana was read over to her. The said statement is at Exh.36.
Deorao Bhokare, Head Constable, who recorded
statement of Kalpana gave the same to Police Inspector, Kanhan
who registered Crime No.242 of 2008 for the offence punishable
under Section 307 of the Indian Penal Code. Printed FIR is at
Exh.37.
5. In the meanwhile, after getting the information and
after getting the requisition (Exh.16), Tryambak Kamble (PW 2), a
Special Executive Magistrate also reached to the Mayo Hospital
and he also recorded statement of Kalpana. The statement
recorded by Tryambak Kamble (PW 2) is at Exh.18. The said
statement also reiterates that it is the appellant who poured
kerosene on Kalpana and set her ablaze. During the investigation
of Crime No.242 of 2008 spot panchanama (Exh.12) was drawn in
presence of panchas and also under seizure memo (Exh.43)
various articles were seized from the spot.
6. During the treatment Kalpana died on 1 st of January,
2009. The offence was, therefore, converted to offene punishable
under Section 302 of the Indian Penal Code.
7. Case was committed to the Court of Sessions by the
learned Magistrate after the charge-sheet was filed in his Court,
noticing that the offence is exclusively triable by the Court of
Sessions. Learned Additional Sessions Judge framed the charge
against the appellant. The appellant denied the charge and
claimed for his trial. The prosecution examined in all nine
witnesses to bring home the guilt of the appellant. The appellant
also examined two defence witnesses. The defence of the
appellant is that of total denial. The learned Court below after
appreciating the prosecution case convicted the appellant and
sentenced to suffer imprisonment for life.
8. We have heard Shri S.M.Puranik, the learned counsel
appointed to represent the appellant through Legal Aid and Shri
M.J.Khan, the learned Additional Public prosecutor for the State.
With the assistance of both the learned counsel, we have gone
through the record and proceedings.
9. The submission of the learned counsel for the appellant
is that the doctor, who gave endorsement that Kalpana was fit to
give her statement, is not examined and therefore, the Dying
Declaration cannot be accepted.
10.
From the record it appears that the doctor who gave
endorsement that the patient is in fit condition is not examined.
Therefore, though at first blush the argument of Shri Puranik
appears to be attractive, on the closer scrutiny of the record and
on the touch-stone of law laid down by the Constitution Bench of
Hon'ble Apex Court, reported in (2002)6 SCC 710 (Laxman ..vs..
State of Maharashtra), the said submission is required to be
rejected.
11. In the present case, there are three Dying Declarations
of Kalpana. The first is the oral Dying Declaration made by
Kalpana to her mother Suman Gedam (PW 6). Two other Dying
Declarations are written Dying Declarations. They are Exh.18
made to the Special Executive Magistrate Shri Tryambak Kamble
(PW 2) and Exh.36 recorded by PW 7 Deorao Bhokare, Head
Constable, which is treated as First Information Report.
Admittedly, Exh.36 was recorded earlier than Exh.18.
12.
Evidence of Suman (PW 6) discloses that when after
getting information that her daughter is burnt, she immediately
rushed to the house of Kalpana. She made enquiries as to how the
incident has occurred. On that, it was informed by Kalpana that it
is the appellant who poured kerosene and set her ablaze and
thereafter ran away.
Inquiring with daughter Kalpana by Suman in respect of
incident is most natural. Thus, there is an immediate disclosure
by Kalpana to her mother that the appellant is the author for
burning. Further, when Suman visited house in the late hour of
night the appellant was not found to be present in his house.
There is nothing on record to disbelieve Suman's version. In fact,
there is no cross-examination at all on the point of oral Dying
Declaration to her or non-presence of appellant in the house. The
presence of the appellant at the time of incident in his house is
admitted by the appellant himself if his statement recorded under
Section 313 of the Code of Criminal Procedure is, while giving
answer to question No.10.
13. Evidence of Deorao Bhokare (PW 7) shows that before
recording statement of Kalpana (Exh.36) he ascertained that she
was in a condition to give her statement and thereafter he
recorded the statement.
14. PW 2 Tryambak Kamble, Special Judicial Magistrate,
after getting the information and the requisition from Police
Station Kanhan to record statement of Kalpana went to Mayo
Hospital at Ward No.3. He gave request letter (Exh.17) to the
House Officer to examine the fitness of Kalpana. He does not stop
there. He then went to the patient and introduced himself. He
then asked her relations and police to leave the Ward and
thereafter he put certain primary questions to Kalpana to ascertain
her fitness to give statement and when he himself was satisfied
that she was in a position to give statement, he recorded her
statement. Exh.18, a contemporaneous document, also shows that
scribe Shri Tryambak Kambale asked the relations of the patient
and police to leave the Ward and in order to ascertain that
Kalpana was in condition to give statement, he put about eight
questions to her and when he himself was satisfied, on the basis of
the answers given to the questions, that she was in a condition to
give her statement, proceeded further to record her statement.
Statement (Exh.18) shows that the appellant is habituated to
drinks. He used to return to house at 11 O'clock in the night
under the influence of liquor and he used to maltreat Kalpana.
On the date of incident also he came to the house under the
influence of liquor. Food was served to him by Kalpana, that time
her children were sleeping and the appellant started awaking
them. When, that time, she obstructed the appellant, he gave
abuses in the filthiest words. Thereafter, again appellant
demanded food and when Kalpana was serving the food, that time
he poured kerosene and set her ablaze and then ran away. The
statement further states that Kalpana then contacted Shri Dhoke
who made a phone call to Waghdhare, the Saw Mill owner, and
then Waghdhare informed to her mother and thereafter her
mother came.
15. Suman in her evidence also states that she received
information from Waghdhare about the burning.
16. The Dying Declaration recorded by PW 2 Tryambak
Kamble shows that the said was read over to the declarent and the
declarent thereafter admits that the contents are true and
thereafter her toe impression was obtained because of burning of
her both the hands. The Post Mortem report (Exh.22) clearly
show that both the hands of Kalpana were completely charred.
17. There need not be multiple Dying Declarations. A
singular Dying Declaration, if it is free from clouds of suspicion
and if it inspires confidence, can be the basis for convicting the
perpetrated of the crime. In the present case, we noticed that the
Special Executive Magistrate visited the hospital and he after
ascertaining that Kalpana was in condition to give statement has
recorded her statement. It is to be mentioned here that Dr.Supriya
M.Parkhi, Medical Officer at Indira Gandhi Medical College and
Hospital (Mayo) was called as court witness along with bed-head
ticket and OPD documents in respect of Kalpana. The said bed-
head ticket is at Exh.54. The recitals in the bed-head ticket clearly
rules out an accidental or a suicidal burn injuries. Noting on the
bed-head ticket dated 28th of December, 2008 also shows that the
patient was in a conscious condition and was oriented. It is to be
noted that it was recorded on 28th of December, 2008 itself.
18. After perusal of both the written Dying Declarations it is
clear that both the Dying Declarations are consistent in nature.
Further, there is an immediate disclosure by Kalpana to her
mother that it is the appellant who has poured kerosene and set
her ablaze. The evidence of all the prosecution witnesses has not
shattered at all during the course of their cross-examination.
Therefore, on re-appreciation of entire prosecution case, we are of
the view that at the appellate stage no interference is required.
Hence, the appeal is dismissed.
19. Fees to be paid to Shri S.M.Puranik, learned counsel
appointed by Legal Aid to represent the appellant, is quantified at
Rs.5000/-.
JUDGE JUDGE
Chute
